Here's some slippery regulatory logic: West Virginia's Department of Environmental Protection says it is justified in setting less stringent levels for mercury in the state's waters than recommended by the U.S. Environmental Protection Agency. Why? Because, according to the WVDEP, a recent study shows that people in West Virginia eat less fish than the "average American" assumed by EPA. And if people consume less fish, they will be exposed to lower quantities of the toxic pollutants in those fish -- including methylmercury. But why might people in West Virginia eat less fish? One reason is likely the statewide fish consumption advisory warning people to limit their consumption of fish caught in all West Virginia waters, due to mercury contamination. But isn't the amount of mercury contamination permitted in the state's waters limited by the WVDEP? Well, yes. But any limitations on sources' releases of mercury are keyed to the WVDEP's water quality standard for mercury -- the one that is relatively lenient -- so sources in this case can release relatively more mercury. Which leads West Virginia to issue more restrictive fish consumption advisories. Which leads people to eat less fish. Which registers as a lower fish consumption rate in studies. Which supports WVDEP in promulgating even more lenient water quality standards for mercury. Which allows sources to release more mercury. Which leads West Virginia to issue more restrictive fish consumption advisories ...
West Virginia’s logic neglects an important consideration, however: fish are good for you. Nutritionists continue to extol the health benefits of eating fish. Fish are an excellent source of protein, omega-3 fatty acids, and a host of other nutrients essential to human health. And, if one can drop a line or dip a net into nearby waters, fish can be a relatively inexpensive source of these nutrients as well. In fact, the American Heart Association recommends that adults eat two 6-ounce fish meals per week, in order to ensure cardiovascular health. The EPA and the Food and Drug Administration similarly recommend that pregnant and nursing women eat two 6-once fish meals per week, in order to ensure the healthy development of their babies.
Yet if a woman in West Virginia were to consume this amount of fish, she could be exposed to methylmercury at levels nearly four times the level determined to be safe for any babies she carried. Methylmercury (the form of mercury that bioaccumulates in fish) is a potent neurotoxin. Exposure to even very small amounts of methylmercury in utero or during childhood can lead to irreversible neurological damage. For this reason, EPA has determined a threshold for exposure at 0.1 μg/kilogram bodyweight per day. Given that WVDEP’s water quality standards allow 0.5 micrograms of mercury per gram of fish tissue, and assuming a bodyweight of 65 kilograms (i.e., 142 pounds – the average bodyweight for women assumed by EPA), a woman eating fish at the level recommended by the American Heart Association would be exposed to 0.38 μg/kilogram bodyweight per day. This amount, obviously, is more than enough to put the neurological health of her babies at risk.
Should women in West Virginia eat fish and risk the harms of methylmercury? Or should they avoid fish and risk missing its health benefits?
This is a “choice” women should not have to make. As I have argued elsewhere, governmental agencies charged with protecting human health and the environment should do just that – by requiring the sources of mercury contamination to reduce their releases to the environment and so, the risks to human health that result. Instead, health and environmental agencies have recently opted for strategies, such as fish consumption advisories, that require those whose practices leave them exposed to contamination to avoid the risks by changing their ways. That is, these regulatory agencies have replaced standards requiring “risk reduction” with measures counseling “risk avoidance.” West Virginia is a case in point: its lenient water quality standards for mercury don’t require much of sources by way of risk reduction, while its statewide fish consumption advisories look to those who might be exposed and ask them to protect themselves by way of risk avoidance.
West Virginia is hardly alone in using this slippery logic; state after state places some or all of their rivers, lakes, and coastal waters “off limits” to those who would eat their catch. The federal government, too, has issued fish consumption advisories due to mercury contamination for several species of fish. And while some states have at least pursued risk reduction in earnest – for example, by issuing rules requiring serious reductions in mercury emissions from coal-fired utilities (the single largest remaining category of mercury emitters) – the federal government, particularly in the George W. Bush administration, notoriously stymied mercury regulation at every turn. Indeed, although the regulatory wheels were put in motion with amendments to the Clean Air Act in 1990, the federal government has still not issued a regulation for coal-fired utilities. And while the EPA during the Clinton administration was poised to issue a regulation that would have required these utilities to reduce their mercury emissions by 90% over three years – by the year 2007 – the Bush EPA scuttled the rule and replaced it with a weak facsimile that would have achieved only 70% emission reductions, and not until some time in the 2020s or even the 2030s. In fact, the Bush EPA invoked such a questionable legal interpretation to justify this lenient treatment of these mercury sources that the D.C. Circuit court vacated the rule and sent EPA back to the drawing board.
In the meantime, while the federal government and states like West Virginia have declined to act, hundreds of thousands of children have been born with neurological damage attributable to anthropogenic sources of mercury contamination
We should reject West Virginia’s logic and, instead, take every opportunity to eliminate mercury releases – and there are several at hand. We should, for example, require meaningful reductions in mercury emissions from coal-fired utilities; phase out the remaining mercury cell chlor-alkali plants (see my recent congressional testimony on this ); and regulate mercury releases from gold mining. We should, in short, get serious about risk reduction if we are to ensure the health of our children and the viability of fish as a food source.
Catherine O'Neill, CPR Member Scholar; Professor of Law, Seattle University School of Law. Bio.
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